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EXHIBIT 10.18
CONFORMED COPY
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BRIDGE LOAN AGREEMENT
Dated as of July 7, 2000,
among
KING PHARMACEUTICALS, INC.,
THE LENDERS NAMED HEREIN,
and
CREDIT SUISSE FIRST BOSTON,
as Sole Lead Arranger and Administrative Agent
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[CS&M No. 2163-429]
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TABLE OF CONTENTS
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ARTICLE I
Definitions
SECTION 1.01. Defined Terms...................................................1
SECTION 1.02. Terms Generally.................................................5
ARTICLE II
The Credits
SECTION 2.01. Loans...........................................................6
SECTION 2.02. Request for Borrowings..........................................6
SECTION 2.03. Funding of Borrowings...........................................6
SECTION 2.04. Evidence of Debt................................................7
SECTION 2.05. Fees............................................................7
SECTION 2.06. Interest on Loans...............................................8
SECTION 2.07. Default Interest................................................8
SECTION 2.08. Alternate Rate of Interest......................................8
SECTION 2.09. Final Maturity; Offer to Exchange...............................8
SECTION 2.10. Prepayment......................................................9
SECTION 2.11. Reserve Requirements; Change in Circumstances...................9
SECTION 2.12. Indemnity......................................................10
SECTION 2.13. Pro Rata Treatment.............................................10
SECTION 2.14. Sharing of Setoffs.............................................10
SECTION 2.15. Payments.......................................................11
SECTION 2.16. Taxes..........................................................11
ARTICLE III
Representations and Warranties
SECTION 3.01. Organization; Powers...........................................12
SECTION 3.02. Authorization..................................................12
SECTION 3.03. Enforceability.................................................13
SECTION 3.04. Governmental Approvals.........................................13
SECTION 3.05. Federal Reserve Regulations....................................13
SECTION 3.06. Use of Proceeds................................................13
SECTION 3.07. Representations in Existing Credit Agreement...................13
SECTION 3.08. Subsidiary Guarantors..........................................13
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ARTICLE IV
Conditions
SECTION 4.01. Closing........................................................13
ARTICLE V
Incorporation by Reference
ARTICLE VI
The Administrative Agent
ARTICLE VII
Miscellaneous
SECTION 7.01. Notices........................................................17
SECTION 7.02. Survival of Agreement..........................................17
SECTION 7.03. Binding Effect.................................................17
SECTION 7.04. Successors and Assigns.........................................17
SECTION 7.05. Expenses; Indemnity............................................20
SECTION 7.06 Right of Setoff; Waiver by Borrower............................20
SECTION 7.07 Applicable Law.................................................21
SECTION 7.08 Waivers; Amendment.............................................21
SECTION 7.09. Interest Rate Limitation.......................................21
SECTION 7.10. Entire Agreement...............................................22
SECTION 7.11. Waiver of Jury Trial...........................................22
SECTION 7.12. Severability...................................................22
SECTION 7.13. Counterparts...................................................22
SECTION 7.14. Headings.......................................................22
SECTION 7.15. Jurisdiction...................................................22
SECTION 7.16. Confidentiality................................................23
Schedule 1.01 Commitments
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BRIDGE LOAN AGREEMENT dated as of July 7, 2000, among
KING PHARMACEUTICALS, INC., a Tennessee corporation (the
"Borrower"), the Lenders (as defined in Article I), and
CREDIT SUISSE FIRST BOSTON, a bank organized under the laws
of Switzerland, acting through its New York Branch, as
administrative agent (in such capacity, the "Administrative
Agent") for the Lenders.
The Borrower has requested that the Lenders provide up to $50,000,000
of Loans to the Borrower which, subject to certain conditions set forth herein,
will convert into a like principal amount of the Borrower's Senior Subordinated
Notes Due 2009 on the Bridge Termination Date. The Loans will be used for
general corporate purposes. The Lenders are willing to make Loans to the
Borrower on the terms and subject to the conditions set forth herein.
Accordingly, the parties hereto agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Defined Terms. As used in this Agreement, the following terms
shall have the meanings specified below:
"Adjusted LIBO Rate" shall mean, with respect to any Borrowing for any
Interest Period, an interest rate per annum equal to the product of (a) the LIBO
Rate in effect for such Interest Period and (b) Statutory Reserves.
"Affiliate" shall mean, when used with respect to a specified person,
another person that directly, or indirectly through one or more intermediaries,
Controls or is Controlled by or is under common Control with the person
specified.
"Alternate Base Rate" shall mean, for any day, a rate per annum equal to
the greater of (a) the Prime Rate in effect on such day minus 1% and (b) the
Federal Funds Effective Rate in effect on such day plus 1/2 of 1%. If for any
reason the Administrative Agent shall have determined (which determination shall
be conclusive absent manifest error) that it is unable to ascertain the Federal
Funds Effective Rate for any reason, including the inability of the
Administrative Agent to obtain sufficient quotations in accordance with the
terms of the definition thereof, the Alternate Base Rate shall be determined
without regard to clause (b) of the preceding sentence until the circumstances
giving rise to such inability no longer exist. Any change in the Alternate Base
Rate due to a change in the Prime Rate or the Federal Funds Effective Rate shall
be effective on the effective date of such change in the Prime Rate or the
Federal Funds Effective Rate, respectively.
"Assignment and Acceptance" shall mean an assignment and acceptance entered
into by a Lender or Lenders and an assignee in a form approved by the
Administrative Agent.
"Board" shall mean the Board of Governors of the Federal Reserve System of
the United States of America.
"Borrowing" shall mean a group of Loans made on a single date.
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"Bridge Termination Date" means January 8, 2001.
"Business Day" shall mean any day other than a Saturday, Sunday or day on
which banks in New York City, New York are authorized or required by law to
close; provided, however, that when used in connection with a Loan, the term
"Business Day" shall also exclude any day on which banks are not open for
dealings in dollar deposits in the London interbank market.
"Closing Date" shall mean July 7, 2000.
"Code" shall mean the Internal Revenue Code of 1986, as amended from time
to time.
"Commitment" means, with respect to each Lender, the commitment of such
Lender to make Loans to the Borrower hereunder, as such commitment may be
reduced or increased from time to time pursuant to Section 7.04. The initial
amount of each Lender's Commitment is set forth on Schedule 1.01 hereto, and the
initial aggregate amount of the Lenders' Commitments is $50,000,000.
"Control" shall mean the possession, directly or indirectly, of the power
to direct or cause the direction of the management or policies of a person,
whether through the ownership of voting securities, by contract or otherwise,
and the terms "Controlling" and "Controlled" shall have meanings correlative
thereto.
"Default" has the meaning assigned to such term in the Existing Indenture.
"dollars" or "$" shall mean lawful money of the United States of America.
"Domestic Subsidiaries" shall mean all Subsidiaries incorporated or
organized under the laws of the United States of America, any State thereof or
the District of Columbia.
"Exchange Notes" shall mean the Senior Subordinated Notes Due 2009 yielding
10-3/4% of the Borrower, in a form and on terms substantially identical to those
of the Existing Notes on and after the Bridge Termination Date.
"Excluded Taxes" shall mean, with respect to the Administrative Agent, any
Lender or any other recipient of any payment to be made by or on account of any
obligation of the Borrower hereunder, (a) income or franchise taxes imposed on
(or measured by) its net income by the United States of America, or by the
jurisdiction under the laws of which such recipient is organized or in which its
principal office is located or, in the case of any Lender, in which its
applicable lending office is located (provided, however, that no Lender or any
other recipient shall be deemed to be located in any jurisdiction solely as a
result of receiving any payments under, or taking any other action related to,
any loan under this or any other agreement), (b) any branch profits taxes
imposed by the United States of America or any similar tax imposed by any other
jurisdiction in which the Borrower is located and (c) in the case of a Foreign
Lender, any withholding tax that (i) is in effect and would apply to amounts
payable to such Foreign Lender at the time such Foreign Lender becomes a party
to this Agreement (or designates a new lending office), except to the extent
that such Foreign Lender (or its assignor, if any) was entitled, at the time of
designation of a new lending office (or assignment), to receive additional
amounts from the Borrower with respect to any withholding tax pursuant to
Section 2.16(a) or (ii) is attributable to such Foreign Lender's failure to
comply with Section 2.16(e).
"Existing Credit Agreement" means the Credit Agreement dated as of February
27, 1998, as amended and restated as of December 22, 1998, among the Company,
certain of its Subsidiaries, the lenders referred to therein, Credit Suisse
First Boston, as Administrative Agent, and First Union National Bank and
NationsBank N.A., as Syndication Agents, together with the
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related documents thereto (including any guarantees and security documents), as
further amended from time to time.
"Existing Indenture" means the Indenture dated as of March 3, 1999 among
the Borrower, certain subsidiary guarantors party thereto and Union Planters
Bank, N.A., as trustee.
"Existing Notes" shall mean the Borrower's existing 10-3/4% Senior
Subordinated Notes Due 2009, issued under the Existing Indenture.
"Existing Registration Rights Agreement" shall mean the Registration Rights
Agreement dated as of February 26, 1999, among the Borrower, Credit Suisse First
Boston Corporation, First Union Capital Markets Corp. and Nationsbanc ▇▇▇▇▇▇▇▇▇▇
Securities LLC relating to the Existing Notes.
"Federal Funds Effective Rate" shall mean, for any day, the weighted
average (rounded upwards, if necessary, to the next 1/100 of 1%) of the rates on
overnight Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers, as published on the next succeeding Business
Day by the Federal Reserve Bank of New York, or, if such rate is not so
published for any day that is a Business Day, the average (rounded upwards, if
necessary, to the next 1/100 of 1%) of the quotations for the day for such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by it.
"Fees" shall have the meaning ascribed thereto in Section 2.05.
"Financial Officer" of any corporation shall mean the chief financial
officer, principal accounting officer, Treasurer or Controller of such
corporation.
"Foreign Lender" shall mean any Lender that is organized under the laws of
a jurisdiction other than in which the Borrower is located. For purposes of this
definition, the United States of America, each State thereof and the District of
Columbia shall be deemed to constitute a single jurisdiction.
"GAAP" shall mean United States generally accepted accounting principles
applied on a consistent basis.
"Governmental Authority" shall mean any Federal, state, local or foreign
court or governmental agency, authority, instrumentality or regulatory body.
"Guarantors" shall mean each domestic Subsidiary on the date hereof, and
each other Subsidiary that becomes party to this Agreement as a Guarantor, and
the permitted successors and assigns of each such person.
"Indemnified Taxes" shall mean Taxes other than Excluded Taxes.
"Indemnitee" is defined in Section 7.05(b).
"Interest Payment Date" shall mean, with respect to any Loan, the last day
of the Interest Period applicable to the Borrowing of which such Loan is a part.
"Interest Period" shall mean, with respect to any Borrowing, the period
commencing on the date of such Borrowing and ending on the numerically
corresponding day in the calendar month that is one, two or three months
thereafter, as the Borrower may elect; provided, that (a) if any Interest Period
would end on a day other than a Business Day, such Interest Period shall be
extended to the next succeeding Business Day unless such next succeeding
Business Day would
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fall in the next calendar month, in which case such Interest Period shall end on
the next preceding Business Day and (b) any Interest Period that commences on
the last Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the last calendar month of such Interest
Period) shall end on the last Business Day of the last calendar month of such
Interest Period. For purposes hereof, the date of a Borrowing initially shall be
the date on which such Borrowing is made and thereafter shall be the effective
date of the most recent conversion or continuation of such Borrowing.
"Lenders" shall mean (a) the Lenders set forth on the signature pages
hereto and (b) any financial institution that has become a party hereto pursuant
to an Assignment and Acceptance.
"LIBO Rate" shall mean, with respect to any Borrowing for any Interest
Period, the rate per annum determined by the Administrative Agent at
approximately 11:00 a.m., London time, on the date which is two Business Days
prior to the beginning of such Interest Period by reference to the British
Bankers' Association Interest Settlement Rates for deposits in dollars (as set
forth by any service selected by the Administrative Agent which has been
nominated by the British Bankers' Association as an authorized information
vendor for the purpose of displaying rates) for a period equal to such Interest
Period, provided that, to the extent that an interest rate is not ascertainable
pursuant to the foregoing provisions of this definition, the "LIBO Rate" shall
be the interest rate per annum determined by the Administrative Agent equal to
the average of the rates per annum (rounded upwards, if necessary, to the next
1/16 of 1%) at which deposits in dollars are offered for such Interest Period by
two major banks selected by the Administrative Agent in the London interbank
market in London, England at approximately 11:00 a.m., London time, on the date
which is two Business Days prior to the beginning of such Interest Period. In
the event that such rate is not available at such time for any reason, then the
"LIBO Rate" with respect to such Borrowing for such Interest Period shall be the
rate (rounded upwards, if necessary, to the next 1/16 of 1%) at which dollar
deposits of an amount equal to the applicable Loans and for a maturity
comparable to such Interest Period are offered by the principal London office of
the Administrative Agent in immediately available funds in the London interbank
market at approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period.
"Loans" means the loans made by the Lenders to the Borrower pursuant to
this Agreement.
"Margin Stock" is defined in Regulation U.
"Obligations" shall mean the due and punctual payment of the principal of
and interest on each Loan and interest accrued thereon and all Fees and all
other expenses or amounts payable hereunder when and as due, whether at
maturity, by acceleration, by prepayment or otherwise, and the full and punctual
performance of all other obligations of the Borrower and the Guarantors under
this Agreement.
"Other Taxes" shall mean any and all present or future stamp or documentary
taxes or any other excise or property taxes, charges or similar levies arising
from any payment made hereunder or from the execution, delivery or enforcement
of, or otherwise with respect to, this Agreement.
"person" shall mean any natural person, corporation, business trust, joint
venture, association, company, partnership or government, or any agency or
political subdivision thereof.
"Prime Rate" shall mean the rate of interest per annum publicly announced
from time to time by the Administrative Agent as its prime rate in effect at its
principal office in New York City, New York; each change in the Prime Rate shall
be effective on the date such change is publicly announced as being effective.
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"Regulation U" shall mean Regulation U of the Board as from time to time in
effect and all official rulings and interpretations thereunder or thereof.
"Regulation X" shall mean Regulation X of the Board as from time to time in
effect and all official rulings and interpretations thereunder or thereof.
"Related Fund" shall mean, with respect to any Lender that is a fund that
invests in loans, any other fund that invests in loans and is managed by the
same investment advisor as such Lender or by an Affiliate of such investment
advisor.
"Required Lenders" shall mean Lenders having Commitments and outstanding
Loans representing a majority in principal amount of the aggregate Commitments
and outstanding Loans.
"Responsible Officer" of any corporation shall mean any executive officer
or Financial Officer of such corporation and any other officer or similar
official thereof responsible for the administration of the obligations of such
corporation in respect of this Agreement.
"Statutory Reserves" shall mean a fraction (expressed as a decimal), the
numerator of which is the number one and the denominator of which is the number
one minus the aggregate of the maximum reserve percentages (including any
marginal, special, emergency or supplemental reserves) expressed as a decimal
established by the Board for Eurocurrency Liabilities (as defined in Regulation
D of the Board). Such reserve percentages shall include those imposed pursuant
to such Regulation D. Loans shall be deemed to constitute Eurocurrency
Liabilities and to be subject to such reserve requirements without benefit of or
credit for proration, exemptions or offsets that may be available from time to
time to any Lender under such Regulation D. Statutory Reserves shall be adjusted
automatically on and as of the effective date of any change in any reserve
percentage.
"subsidiary" shall mean, with respect to any person (herein referred to as
the "parent"), any corporation, partnership, association or other business
entity (a) of which securities or other ownership interests representing more
than 50% of the equity or more than 50% of the ordinary voting power or more
than 50% of the general partnership interests are, at the time any determination
is being made, owned, controlled or held, or (b) that is, at the time any
determination is made, otherwise Controlled, by the parent or one or more
subsidiaries of the parent or by the parent and one or more subsidiaries of the
parent.
"Subsidiary" shall mean any subsidiary of the Borrower.
"Taxes" shall mean any and all present or future taxes, levies, imposts,
duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"Transactions" is defined in Section 3.02.
SECTION 1.02. Terms Generally. The definitions in Section 1.01 shall apply
equally to both the singular and plural forms of the terms defined. Whenever the
context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include", "includes" and "including" shall
be deemed to be followed by the phrase "without limitation". All references
herein to Articles, Sections, Exhibits and Schedules shall be deemed references
to Articles and Sections of, and Exhibits and Schedules to, this Agreement
unless the context shall otherwise require. Except as otherwise expressly
provided herein, (a) any reference in this Agreement to any document shall mean
such document as amended, restated, supplemented or otherwise modified from time
to time and (b) all terms of an accounting or financial nature shall be
construed in accordance with GAAP, as in effect from time to time;
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provided, however, that, if the Borrower notifies the Administrative Agent that
the Borrower requests an amendment to any provision hereof to eliminate the
effect of any change occurring after the date hereof in GAAP or in the
application thereof on the operation of such provision (or if the Administrative
Agent notifies the Borrower that the Required Lenders request an amendment to
any provision hereof for such purpose), regardless of whether any such notice is
given before or after such change in GAAP or in the application thereof, then
such provision shall be interpreted on the basis of GAAP as in effect and
applied immediately before such change shall have become effective until such
notice shall have been withdrawn or such provision amended in accordance
herewith. All computations required to be made hereunder to demonstrate pro
forma compliance with any covenant after giving effect to any acquisition,
investment, sale, disposition or similar event shall reflect on a pro forma
basis such event and, to the extent applicable, the historical earnings and cash
flows associated with the assets acquired or disposed of and any related
incurrence or reduction of Indebtedness, but shall not take into account any
projected synergies or similar benefits expected to be realized as a result of
such event.
ARTICLE II
The Credits
SECTION 2.01. Loans. (a) On the terms, subject to the
conditions and in reliance upon the representations and warranties of the
Borrower herein set forth, the Lenders agree to make Loans to the Borrower from
time to time during the period from the date hereof to but excluding the Bridge
Termination Date in an aggregate amount not to exceed $50,000,000. The failure
of any Lender to make any Loan required to be made by it shall not relieve any
other Lender of its obligations hereunder. Amounts paid or prepaid with respect
to Loans may not be reborrowed.
(b) Each Loan shall be made as part of a Borrowing consisting
of Loans made by the Lenders ratably in accordance with their respective
Commitments. Each Borrowing shall be in an aggregate amount that is an integral
multiple of $5,000,000 or an amount equal to the entire unused balance of the
Commitments. Each Lender may at its option make any Loan by causing any domestic
or foreign branch or Affiliate of such Lenders to make such Loan; provided,
however, that any exercise of such option shall not affect the obligation of the
Borrower to repay such Loan in accordance with the terms of this Agreement.
SECTION 2.02. Requests for Borrowings. To request a Borrowing,
the Borrower shall notify the Administrative Agent of such request by telephone
not later than 11:00 a.m., New York City time, three Business Days before the
date of the proposed Borrowing (except that the Borrower may request a Borrowing
for the date hereof not later than 11:00 a.m. on the date hereof). Each such
telephonic Borrowing Request shall be irrevocable and shall be confirmed
promptly by hand delivery or telecopy to the Administrative Agent of a written
Borrowing Request in the form attached hereto as Exhibit A and signed by the
Borrower. Each such telephonic and written Borrowing Request shall specify the
following information:
(i) the aggregate amount of the requested Borrowing;
(ii) the date of such Borrowing, which shall be a Business
Day; and
(iii) the location and number of the Borrower's account to
which funds are to be disbursed.
SECTION 2.03. Funding of Borrowings. (a) Each Lender shall
make each Loan to be made by it hereunder on the proposed date thereof by wire
transfer of immediately available
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funds by 12:00 noon, New York City time, to the account of the Administrative
Agent most recently designated by it for such purpose by notice to the Lenders.
The Administrative Agent will make such Loans available to the Borrower by
promptly crediting the amounts so received, in like funds, to an account of the
Borrower designated by the Borrower in the applicable Borrowing Request.
(b) Unless the Administrative Agent shall have received notice
from a Lender prior to the proposed date of any Borrowing that such Lender will
not make available to the Administrative Agent such Lender's share of such
Borrowing, the Administrative Agent may assume that such Lender has made such
share available on such date in accordance with paragraph (a) of this Section
and may, in reliance upon such assumption, make available to the Borrower a
corresponding amount. In such event, if a Lender has not in fact made its share
of the applicable Borrowing available to the Administrative Agent, then the
applicable Lender and the Borrower severally agree to pay to the Administrative
Agent forthwith on demand such corresponding amount with interest thereon, for
each day from and including the date such amount is made available to the
Borrower to but excluding the date of payment to the Administrative Agent, at
(i) in the case of such Lender, the greater of the Federal Funds Effective Rate
and a rate determined by the Administrative Agent in accordance with banking
industry rules on interbank compensation or (ii) in the case of the Borrower,
the interest rate applicable to such Loan (provided, however, that any such
payment by the Borrower will not constitute a repayment for purposes of the last
sentence of Section 2.01(a)). If such Lender pays such amount to the
Administrative Agent, then such amount shall constitute such Lender's Loan
included in such Borrowing.
SECTION 2.04. Evidence of Debt. (a) The Administrative Agent
shall maintain accounts in which it will record (i) the amount of each Loan made
hereunder, (ii) the amount of any principal or interest due and payable or to
become due and payable from the Borrower to each Lender hereunder and (iii) the
amount of any sum received by the Administrative Agent hereunder from the
Borrower or any Guarantor and each Lender's share thereof.
(b) The entries made in the accounts maintained pursuant to
paragraph (a) above shall be prima facie evidence of the existence and amounts
of the obligations therein recorded; provided, however, that the failure of any
Lender or the Administrative Agent to maintain such accounts or any error
therein shall not in any manner affect the obligation of the Borrower to repay
the Loans in accordance with their terms.
(c) Notwithstanding any other provision of this Agreement, in
the event any Lender shall request and receive a promissory note payable to such
Lender and its registered assigns, the interests represented by such note shall
at all times (including after any assignment of all or part of such interests
pursuant to Section 7.04) be represented by one or more promissory notes payable
to the payee named therein or its registered assigns.
SECTION 2.05. Fees. (a) The Borrower agrees to pay to the
Administrative Agent for the account of each Lender a commitment fee of 0.75%
per annum on the average daily amount of the unused Commitment of such Lender
during the preceding calendar quarter, from and including the date hereof to the
Bridge Termination Date or any earlier date on which the Commitments shall be
terminated. The commitment fees will be payable on the last Business Day of each
calendar quarter, on the Bridge Termination Date and on any earlier date on
which the Commitments shall be terminated.
(b) The Borrower agrees to pay the underwriting and other fees
set forth in the Fee Letter between the Borrower and the Administrative Agent
dated the date hereof.
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SECTION 2.06. Interest Period Elections. Each Borrowing shall
have an initial Interest Period as specified in the applicable Borrowing
Request. At the end of each Interest Period for a Borrowing, the Borrower shall
notify the Administrative Agent of the next Interest Period to be in effect for
such Borrowing by the time that a Borrowing Request would be required under
Section 2.02. Each such request shall be irrevocable. If the Borrower shall not
have timely specified an Interest Period for any Borrowing, then it will be
deemed to have selected an Interest Period of one month's duration.
SECTION 2.07. Interest on Loans. (a) The Loans comprising
each Borrowing shall bear interest at the Adjusted LIBO Rate for the Interest
Period in effect for such Borrowing plus 4.25% per annum.
(b) If any principal of or interest on any Loan or any fee or
other amount payable by the Borrower hereunder is not paid when due, whether at
stated maturity, upon acceleration or otherwise, such overdue amount shall bear
interest, after as well as before judgment, at a rate per annum equal to (i) in
the case of overdue principal of any Loan, 2% per annum plus the rate otherwise
applicable to such Loan as provided in the preceding paragraphs of this Section
or (ii) in the case of any other amount, 2% per annum plus the Alternate Base
Rate.
(c) Accrued interest on each Loan shall be payable in arrears
on each Interest Payment Date for such Loan and upon termination of the
Commitments; provided that (i) interest accrued pursuant to paragraph (c) shall
be payable on demand, (ii) in the event of any repayment or prepayment of any
Loan, accrued interest on the principal amount repaid or prepaid shall be
payable on the date of such repayment or prepayment and (iii) in the event of
any conversion of any Loan prior to the end of the current Interest Period
therefor, accrued interest on such Loan shall be payable on the effective date
of such conversion.
(d) All interest hereunder shall be computed on the basis of a
year of 360 days. The applicable Adjusted LIBO Rate shall be determined by the
Administrative Agent, and such determination shall be conclusive absent manifest
error.
SECTION 2.08. Alternate Rate of Interest. In the event and on
each occasion that on the day two Business Days prior to the commencement of any
Interest Period for a Borrowing the Administrative Agent shall have determined
that dollar deposits in the principal amounts of the Loans comprising such
Borrowing are not generally available in the London interbank market, or that
the rates at which such dollar deposits are being offered will not exceed the
cost to any Lender of making or maintaining its Loan, or that reasonable means
do not exist for ascertaining the Adjusted LIBO Rate, the Administrative Agent
shall, as soon as practicable thereafter, give written or telecopy notice of
such determination to the Borrower and the Lenders. In the event of any such
determination, until the Administrative Agent shall have advised the Borrower
and the Lenders that the circumstances giving rise to such notice no longer
exist, any affected Borrowing shall bear interest at the Alternative Base Rate.
Each determination by the Administrative Agent hereunder shall be conclusive
absent manifest error.
SECTION 2.09. Final Maturity; Offer to Exchange. (a) The Loans
will mature and be due and payable, together with all accrued and unpaid
interest thereon, on the Bridge Termination Date; provided that if on the Bridge
Termination Date the Existing Credit Agreement shall remain in effect and shall
not have been amended to permit Indebtedness of the Borrower in the amount and
on the terms of the Loans and with a maturity on the Bridge Termination Date to
be outstanding and to be repaid on such date, then the Loans will not mature on
the Bridge Termination Date but will instead automatically convert on such date
into Exchange Notes of an equal principal amount. The terms of the Exchange
Notes will be identical to those of the Existing Notes as in effect from the
Bridge Termination Date until the maturity of the Existing Notes, as such terms
are set forth in the Existing Indenture and the other instruments and
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agreements executed in connection with the Existing Notes. The Exchange Notes
will be evidenced by instruments, and issued under an indenture, prepared by
counsel for the Administrative Agent and substantially identical to the
instruments evidencing the Existing Notes and the Existing Indenture, with such
changes as may be appropriate for such instruments and such indenture to refer
to, evidence and govern the Exchange Notes. The holders of the Exchange Notes
will also have the benefit of registration rights (including the right to
registration by means of an offer to exchange registered securities) identical
to those granted to the initial purchasers of the Existing Notes. Such
registration rights will be set forth in an agreement which shall be prepared by
counsel for the Administrative Agent and substantially identical to the Existing
Registration Rights Agreement, with such changes as shall be appropriate to make
such rights applicable to the Exchange Notes and the holders thereof. The
Borrower agrees to execute and deliver the instruments and documents referred to
in this paragraph on the Bridge Termination Date unless the Loans shall be, or
shall have been, repaid or prepaid in accordance with the provisions hereof.
(b) The Borrower will use its best efforts, at the time of the
exchange referred to in paragraph (a) above, to cause the holders of the
Existing Notes to exchange such Notes for notes identical to, and having the
same CUSIP number as, the Exchange Notes and governed by the same indenture as
the Exchange Notes.
SECTION 2.10. Prepayment. The Borrower may at any time and
from time to time prepay Borrowings in whole or in part, subject to Section
2.09; provided that no such prepayment shall be made that would be prohibited by
the Existing Credit Agreement. Partial prepayments shall be in an aggregate
principal amount equal to $5,000,000 or an integral multiple of $1,000,000 in
excess thereof, or equal to the entire remaining aggregate unpaid principal
amount of the Borrowings. Prepayments shall be applied ratably to the Loans
comprising the affected Borrowings.
SECTION 2.11. Reserve Requirements; Change in Circumstances.
(a) Notwithstanding any other provision of this Agreement, if after the date of
this Agreement any change in applicable law or regulation or in the
interpretation or administration thereof by any Governmental Authority charged
with the interpretation or administration thereof (whether or not having the
force of law) shall change the basis of taxation of payments to any Lender of
the principal of or interest on any Loan made by such Lenders or any Fees or
other amounts payable hereunder (other than changes in respect of taxes imposed
on the overall net income of such Lenders by the jurisdiction in which such
Lenders has its principal office or by any political subdivision or taxing
authority therein), or shall impose, modify or deem applicable any reserve,
special deposit or similar requirement against assets of, deposits with or for
the account of or credit extended by any Lender (except any such reserve
requirement which is reflected in the Adjusted LIBO Rate) or shall impose on
such Lenders or the London interbank market any other condition affecting this
Agreement or Loans made by such Lenders, and the result of any of the foregoing
shall be to increase the cost to such Lenders of making or maintaining any Loan
or to reduce the amount of any sum received or receivable by such Lenders
hereunder (whether of principal, interest or otherwise) by, or impose a cost or
expense on any Lender in, an amount deemed by such Lenders to be material, then
the Borrower will pay to such Lenders, upon demand such additional amount or
amounts as will compensate such Lenders for such additional costs incurred or
reduction suffered.
(b) If any Lender shall have determined that the adoption
after the date hereof of any law, rule, regulation, agreement or guideline
regarding capital adequacy, or any change after the date hereof in any such law,
rule, regulation, agreement or guideline (whether such law, rule, regulation,
agreement or guideline has been adopted) or in the interpretation or
administration thereof by any Governmental Authority charged with the
interpretation or administration thereof, or compliance by any Lender (or any
lending office of such Lenders) or any Lender's holding
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company with any request or directive regarding capital adequacy (whether or not
having the force of law) of any Governmental Authority has or would have the
effect of reducing the rate of return on such Lenders's capital or on the
capital of such Lenders's holding company, if any, as a consequence of this
Agreement or the Loans or its Contingent Note Purchase Obligations to a level
below that which such Lenders or such Lenders's holding company could have
achieved but for such applicability, adoption, change or compliance (taking into
consideration such Lenders's policies and the policies of such Lenders's holding
company with respect to capital adequacy) by an amount deemed by such Lenders to
be material, then from time to time the Borrower shall pay to such Lenders, such
additional amount or amounts as will compensate such Lenders or such Lenders's
holding company for any such reduction suffered.
(c) A certificate of a Lender setting forth the amount or
amounts necessary to compensate such Lenders or its holding company, as
applicable, as specified in paragraph (a) or (b), together with supporting
documentation or computations, above shall be delivered to the Borrower and
shall be conclusive absent manifest error. The Borrower shall pay such Lenders
the amount shown as due on any such certificate delivered by it within 10 days
after its receipt of the same.
(d) Failure or delay on the part of any Lender to demand
compensation for any increased costs or reduction in amounts received or
receivable or reduction in return on capital shall not constitute a waiver of
such Lenders's right to demand such compensation. The protection of this Section
shall be available to each Lender regardless of any possible contention of the
invalidity or inapplicability of the law, rule, regulation, agreement, guideline
or other change or condition that shall have occurred or been imposed.
SECTION 2.12. Indemnity. The Borrower shall indemnify each
Lender (other than the Initial Lenders) against any loss or expense that such
Lenders may sustain or incur as a consequence of (a) any event, other than a
default by such Lenders in the performance of its obligations hereunder, which
results in (i) such Lenders receiving or being deemed to receive any amount on
account of the principal of any Loan prior to the end of the Interest Period in
effect therefor or (ii) any Loan to be made by such Lenders not being made after
notice of such Loan shall have been given by the Borrower hereunder (any of the
events referred to in this clause (a) being called a "Breakage Event") or (b)
any default in the making of any payment or prepayment required to be made
hereunder. In the case of any Breakage Event, such loss shall include an amount
equal to the excess, as reasonably determined by such Lenders, of (i) its cost
of obtaining funds for the Loan that is the subject of such Breakage Event for
the period from the date of such Breakage Event to the last day of the Interest
Period in effect (or that would have been in effect) for such Loan over (ii) the
amount of interest likely to be realized by such Lenders in redeploying the
funds released or not utilized by reason of such Breakage Event for such period.
A certificate of any Lender setting forth any amount or amounts which such
Lenders is entitled to receive pursuant to this Section 2.12, together with
supporting documentation or computations, shall be delivered to the Borrower and
shall be conclusive absent manifest error.
SECTION 2.13. Pro Rata Treatment. Each Borrowing, each payment
or prepayment of principal of any Borrowing, each payment of interest on the
Loans, each payment of the Fees and each continuation of any Borrowing shall be
allocated pro rata among the Lenders in accordance with the respective principal
amounts of their Commitments or outstanding Loans. Each Lender agrees that in
computing such Lenders's portion of any Borrowing to be made hereunder, the
Administrative Agent may, in its discretion, round each Lender's percentage of
such Borrowing to the next higher or lower whole dollar amount.
SECTION 2.14. Sharing of Setoffs. Each Lender agrees that if
it shall, through the exercise of a right of banker's lien, setoff or
counterclaim against the Borrower or any Guarantor, or pursuant to a secured
claim under Section 506 of Title 11 of the United States
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Code or other security or interest arising from, or in lieu of, such secured
claim, received by such Lenders under any applicable bankruptcy, insolvency or
other similar law or otherwise, or by any other means, obtain payment (voluntary
or involuntary) in respect of any Loan or Loans as a result of which the unpaid
principal portion of its Loans shall be proportionately less than the unpaid
principal portion of the Loans of any other Lenders, it shall be deemed
simultaneously to have purchased from such other Lenders at face value, and
shall promptly pay to such other Lenders the purchase price for, a participation
in the Loans of such other Lenders, so that the benefit of all such payments
shall be shared by the Lenders ratably in accordance with the aggregate unpaid
principal amount of the Loans and participations in Loans held by all the
Lenders; provided, however, that (i) if any such participations are purchased
pursuant to this Section 2.14 and the payment giving rise thereto shall
thereafter be recovered, such participations shall be rescinded to the extent of
such recovery and the purchase price restored without interest, and (ii) the
provisions of this paragraph shall not be construed to apply to any payment made
by the Borrower pursuant to and in accordance with the express terms of this
Agreement or any payment obtained by a Lender as consideration for the
assignment of or sale of a participation in any of its Loans to any assignee or
participant, other than to the Borrower or any of the Subsidiaries or any
Affiliate thereof (as to which the provisions of this paragraph shall apply).
The Borrower expressly consents to the foregoing arrangements and agrees that
any Lender holding a participation in a Loan deemed to have been so purchased
may exercise any and all rights of banker's lien, setoff or counterclaim with
respect to any and all moneys owing by the Borrower to such Lenders by reason of
such participation as fully as if such Lenders had made a Loan directly to the
Borrower in the amount of such participation.
SECTION 2.15. Payments. (a) The Borrower shall make each
payment (including principal of or interest on any Borrowing or any Fees or
other amounts) hereunder not later than 1:00 p.m., New York City time, on the
date when due in immediately available dollars, without setoff, defense or
counterclaim. Any amounts received after such time on any date may, in the
discretion of the Administrative Agent, be deemed to have been received on the
next succeeding Business Day for purposes of calculating interest thereon. Each
such payment (other than payments pursuant to Sections 2.11, 2.12, 2.16 and
7.05, which shall be made directly to the persons entitled thereto) shall be
made to the Administrative Agent at its offices at Eleven Madison Avenue, New
York, New York 10010, or as otherwise directed.
(b) The Administrative Agent shall distribute any such
payments received by it for the account of any other person to the appropriate
recipient promptly following receipt thereof. Whenever any payment (including
principal of or interest on any Borrowing or any Fees or other amounts)
hereunder shall become due, or otherwise would occur, on a day that is not a
Business Day, such payment may be made on the next succeeding Business Day, and
such extension of time shall in such case be included in the computation of
interest or Fees, if applicable.
SECTION 2.16. Taxes. (a) Any and all payments by or on account
of any obligation of the Borrower hereunder shall be made free and clear of and
without deduction for any Indemnified Taxes or Other Taxes; provided, however,
that if the Borrower shall be required to deduct any Indemnified Taxes or Other
Taxes from such payments, then (i) the sum payable shall be increased as
necessary so that after making all required deductions (including deductions
applicable to additional sums payable under this Section) the Administrative
Agent or Lenders, as the case may be, receives an amount equal to the sum it
would have received had no such deductions been made, (ii) the Borrower shall
make such deductions and (iii) the Borrower shall pay the full amount deducted
to the relevant Governmental Authority in accordance with applicable law.
(b) In addition, the Borrower shall pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable law.
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(c) The Borrower shall indemnify the Administrative Agent and
each Lender, within 10 days after written demand therefor, for the full amount
of any Indemnified Taxes or Other Taxes paid by the Administrative Agent, such
Lenders, on or with respect to any payment by or on account of any obligation of
the Borrower hereunder (including Indemnified Taxes or Other Taxes imposed or
asserted on or attributable to amounts payable under this Section) and any
penalties, interest and reasonable expenses arising therefrom or with respect
thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or
legally imposed or asserted by the relevant Governmental Authority. A
certificate as to the amount of such payment or liability delivered to the
Borrower by a Lender, or by the Administrative Agent on its own behalf or on
behalf of a Lender, shall be conclusive absent manifest error.
(d) As soon as practicable after any payment of Indemnified
Taxes or Other Taxes by the Borrower to a Governmental Authority, the Borrower
shall deliver to the Administrative Agent the original or a certified copy of a
receipt issued by such Governmental Authority evidencing such payment, a copy of
the return reporting such payment or other evidence of such payment reasonably
satisfactory to the Administrative Agent.
(e) Any Foreign Lender that is entitled to an exemption from
or reduction of withholding tax under the law of the jurisdiction in which the
Borrower is located, or any treaty to which such jurisdiction is a party, with
respect to payments under this Agreement shall, after having received from the
Borrower notice of the availability of such exemptions from or reductions of
withholding tax, as well as all such appropriate documentation prescribed by
applicable law, deliver to the Borrower (with a copy to the Administrative
Agent), at the time or times prescribed by applicable law, such properly
completed and executed documentation prescribed by applicable law or reasonably
requested by the Borrower as will permit such payments to be made without
withholding or at a reduced rate.
ARTICLE III
Representations and Warranties
The Borrower represents and warrants as of the Closing Date to the
Administrative Agent and each of the Lenders that:
SECTION 3.01. Organization; Powers. The Borrower and each of
the Subsidiaries has the corporate power and authority to execute, deliver and
perform its obligations under this Agreement and each other agreement or
instrument contemplated hereby to which it is or will be a party and, in the
case of the Borrower, to borrow hereunder.
SECTION 3.02. Authorization. The execution, delivery and
performance by the Borrower and each of the Subsidiaries of this Agreement and
each other agreement or instrument contemplated hereby to which it is or will be
a party (including the Exchange Notes and the related indenture and registration
rights agreement), and the Borrowings hereunder (collectively, the
"Transactions") (a) have been duly authorized by all requisite corporate and, if
required, stockholder action and (b) will not (i) violate (A) any provision of
law, statute, rule or regulation, or of the certificate or articles of
incorporation or other constitutive documents or by-laws of the Borrower or any
of the Subsidiaries, (B) any order of any Governmental Authority or (C) any
provision of any indenture, agreement or other instrument to which the Borrower
or any of the Subsidiaries is a party or by which any of them or any of their
property is or may be bound, including, without limitation, all covenants set
forth in the Existing Credit Agreement, (ii) be in conflict with, result in a
breach of or constitute (alone or with notice or lapse of time or both) a
default under, or give rise to any right to accelerate or to require the
prepayment, repurchase or redemption of any obligation under any such indenture,
agreement or other instrument or (iii)
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result in the creation or imposition of any Lien upon or with respect to any
property or assets now owned or hereafter acquired by the Borrower or any of the
Subsidiaries other than Liens securing obligations under the Existing Credit
Agreement.
SECTION 3.03. Enforceability. This Agreement has been duly
executed and delivered by the Borrower and each Guarantor and constitutes, and
each document contemplated hereby (including the Exchange Notes and the related
indenture and registration rights agreement) when executed and delivered by the
Borrower or any Subsidiary party thereto will constitute, a legal, valid and
binding obligation of the Borrower or such Subsidiary enforceable against the
Borrower or such Subsidiary in accordance with its terms.
SECTION 3.04. Governmental Approvals. No action, consent or
approval of, registration or filing with or any other action by any Governmental
Authority is or will be required in connection with the Transactions, except for
such as have been made or obtained and are in full force and effect.
SECTION 3.05. Federal Reserve Regulations. (a) Neither the
Borrower nor any of the Subsidiaries is engaged principally, or as one of its
important activities, in the business of extending credit for the purpose of
buying or carrying Margin Stock.
(b) No part of the proceeds of any Loan will be used, whether
directly or indirectly, and whether immediately, incidentally or ultimately, for
any purpose that entails a violation of, or that is inconsistent with, the
provisions of the Regulations of the Board, including Regulation U or X.
SECTION 3.06. Use of Proceeds. The Borrower will use the
proceeds of the Loans only for the purposes specified in the preamble to this
Agreement.
SECTION 3.07. Representations in Existing Credit Agreement.
The representations and warranties set forth in the Existing Credit Agreement
are true and correct on and as of the date hereof and will be true and correct
on and as of the date of each Borrowing hereunder with the same effect as if
made on and as of the date hereof (but with all references therein to December
31, 1997, and September 30, 1998, being deemed references to December 31, 1999,
and March 31, 2000, respectively).
SECTION 3.08. Subsidiary Guarantors. The Subsidiaries of the
Borrower listed on the signature pages hereto as Guarantors constitute all of
the Domestic Subsidiaries of the Borrower which are also Restricted Subsidiaries
(as such term is defined in the Existing Indenture).
ARTICLE IV
Conditions
SECTION 4.01. Closing. The obligations of the Lenders to make
Loans as part of each Borrowing hereunder are subject to the satisfaction of the
following conditions:
(a) The representations and warranties set forth in Article
III shall be true and correct in all material respects on and as of the date of
such Borrowing with the same effect as though made on and as of such date,
except to the extent such representations and warranties expressly relate to an
earlier date.
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(b) The Borrower shall be in compliance with all the terms and
provisions set forth herein on its part to be observed or performed, and at the
time of and immediately after such Borrowing, no Event of Default or Default
shall have occurred and be continuing.
(c) The Administrative Agent shall have received, on behalf of
itself and the Lenders, a favorable written opinion of ▇▇▇▇ ▇▇▇▇▇▇▇, Esq.,
Executive Vice President and Corporate Counsel of the Borrower, covering such
matters as the Administrative Agent shall have reasonably requested.
(d) Not later than 10 Business Days after the date hereof, the
Administrative Agent shall have received such evidence as it shall reasonably
have requested as to the corporate power and authority of the Borrower and each
Guarantor to enter into the transactions contemplated hereby.
(e) The Administrative Agent shall have received a
certificate, dated the Closing Date and signed by a Financial Officer of the
Borrower, confirming compliance with the conditions precedent set forth in
paragraphs (a) and (b).
(f) The Administrative Agent shall have received all Fees and
other amounts due and payable on or prior to the Closing Date, including, to the
extent invoiced, reimbursement or payment of all out-of-pocket expenses required
to be reimbursed or paid by the Borrower hereunder.
(g) At the time of and immediately after each Borrowing
hereunder, the Consolidated Coverage Ratio (as such term is defined in the
Existing Indenture) of the Borrower shall be greater than 2.0 to 1.0 after
giving effect to such Borrowing.
ARTICLE V
Incorporation by Reference
The provisions of the following Sections or Articles, as the
case may be, of the Existing Indenture are incorporated herein by reference in
their entirety with the same effect as if set forth in full herein (with the
defined terms used therein, including defined terms used in other defined terms,
having the meanings assigned to them in the Existing Indenture except as
expressly set forth below):
Sections 4.03, 4.04, 4.05, 4.06, 4.07, 4.08, 4.09, 4.10, 4.11, 4.12,
Article 5, Sections 6.01, 6.02 and 6.03, Article 10, Article 11, and
Article 12 (except that references in such Sections and Articles or in
the definitions employed therein to the Trustee or the Paying Agent
shall be deemed references to the Administrative Agent; references to
Holders or Securityholders shall be deemed references to Lenders;
references to Securities and the issuance or repurchase thereof shall
be deemed to be references to Loans and the borrowing or repayment
thereof, respectively; references to the Credit Agreement shall be
deemed references to the Existing Credit Agreement; references to
Defaults and Events of Default shall be deemed references to Defaults
and Events of Default hereunder; references to the Company shall be
deemed references to the Borrower; references to the Indenture shall be
deemed references to this Agreement; and references to the Obligations
shall be deemed references to the Obligations as such term is defined
in this Agreement).
It is agreed that the purpose of the foregoing incorporation is to afford the
Lenders, with respect to their Loans, substantially the protections afforded by
the incorporated provisions to the holders
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of the Existing Notes with respect to such Existing Notes, and the provisions
set forth or incorporated by reference in this Article IV shall be construed
accordingly.
ARTICLE VI
The Administrative Agent
In order to expedite the transactions contemplated by this Agreement,
Credit Suisse First Boston is hereby appointed to act as Administrative Agent on
behalf of the Lenders (for purposes of this Article VI, the Administrative Agent
is referred to as the "Agent"). Each of the Lenders and each assignee of any
such Lender, hereby irrevocably authorizes the Agent to take such actions on
behalf of such Lenders or assignee and to exercise such powers as are
specifically delegated to the Agent by the terms and provisions hereof, together
with such actions and powers as are reasonably incidental thereto. The Agent is
hereby expressly authorized by the Lenders, without hereby limiting any implied
authority, (a) to receive on behalf of the Lenders all payments of principal of
and interest on the Loans and all other amounts due to the Lenders hereunder,
and promptly to distribute to each Lender its proper share of each payment so
received; (b) to give notice on behalf of each of the Lenders to the Borrower of
any Event of Default incorporated by reference into this Agreement of which the
Agent has actual knowledge acquired in connection with its agency hereunder; and
(c) to distribute to each Lender copies of all notices, financial statements and
other materials delivered by the Borrower or any Guarantor pursuant to this
Agreement as received by the Administrative Agent.
Neither the Agent nor any of its respective directors, officers,
employees or agents shall be liable as such for any action taken or omitted by
any of them except for its or his own gross negligence or wilful misconduct, or
be responsible for any statement, warranty or representation herein or the
contents of any document delivered in connection herewith, or be required to
ascertain or to make any inquiry concerning the performance or observance by the
Borrower or any Guarantor of any of the terms, conditions, covenants or
agreements contained herein. The Agent shall not be responsible to the Lenders
for the due execution, genuineness, validity, enforceability or effectiveness of
this Agreement or any other instruments or agreements. The Agent shall in all
cases be fully protected in acting, or refraining from acting, in accordance
with written instructions signed by the Required Lenders and, except as
otherwise specifically provided herein, such instructions and any action or
inaction pursuant thereto shall be binding on all the Lenders. The Agent shall,
in the absence of knowledge to the contrary, be entitled to rely on any
instrument or document believed by it in good faith to be genuine and correct
and to have been signed or sent by the proper person or persons. Neither the
Agent nor any of its respective directors, officers, employees or agents shall
have any responsibility to the Borrower or any Guarantor on account of the
failure of or delay in performance or breach by any Lender of any of its
obligations hereunder or to any Lender on account of the failure of or delay in
performance or breach by any other Lender or the Borrower or any Guarantor of
any of their respective obligations hereunder or in connection herewith. The
Agent may execute any and all duties hereunder by or through agents or employees
and shall be entitled to rely upon the advice of legal counsel selected by it
with respect to all matters arising hereunder and shall not be liable for any
action taken or suffered in good faith by it in accordance with the advice of
such counsel.
The Lenders hereby acknowledge that the Agent shall not be under any
duty to take any discretionary action permitted to be taken by it pursuant to
the provisions of this Agreement unless it shall be requested in writing to do
so by the Required Lenders.
Subject to the appointment and acceptance of a successor Agent as
provided below, the Agent may resign at any time by notifying the Lenders and
the Borrower. Upon any such
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resignation, the Required Lenders shall have the right to appoint a successor.
If no successor shall have been so appointed by the Required Lenders and shall
have accepted such appointment within 30 days after the retiring Agent gives
notice of its resignation, then the retiring Agent may, on behalf of the
Lenders, appoint a successor Agent which shall be a bank with an office in New
York, New York, having a combined capital and surplus of at least $500,000,000
or an Affiliate of any such bank. Upon the acceptance of any appointment as
Agent hereunder by a successor bank, such successor shall succeed to and become
vested with all the rights, powers, privileges and duties of the retiring Agent
and the retiring Agent shall be discharged from its duties and obligations
hereunder. After the Agent's resignation hereunder, the provisions of this
Article and Section 7.05 shall continue in effect for its benefit in respect of
any actions taken or omitted to be taken by it while it was acting as Agent.
With respect to the Loans made by it hereunder, the Agent in its
individual capacity and not as Agent shall have the same rights and powers as
any other Lenders and may exercise the same as though it were not an Agent, and
the Agent and its Affiliates may accept deposits from, lend money to and
generally engage in any kind of business with the Borrower or any of the
Subsidiaries or other Affiliate thereof as if it were not an Agent.
Each Lender agrees (a) to reimburse the Agent, on demand, in the amount
of its pro rata share (based on the ratio of the aggregate principal amount of
the outstanding Loans held by such Lender to the aggregate principal amount of
Loans then outstanding hereunder) of any expenses incurred for the benefit of
the Lenders by the Agent, including counsel fees and compensation of agents and
employees paid for services rendered on behalf of the Lenders, that shall not
have been reimbursed by the Borrower and (b) to indemnify and hold harmless the
Agent and any of its directors, officers, employees or agents, on demand, in the
amount of such pro rata share, from and against any and all liabilities, taxes,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever that may be imposed
on, incurred by or asserted against it in its capacity as Agent or any of them
in any way relating to or arising out of this Agreement or any action taken or
omitted by it or any of them under this Agreement, to the extent the same shall
not have been reimbursed by the Borrower or any Guarantor; provided, however,
that no Lenders shall be liable to the Agent or any such other indemnified
person for any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements that are
determined by a court of competent jurisdiction by final and nonappealable
judgment to have resulted from the gross negligence or wilful misconduct of the
Agent or any of its directors, officers, employees or agents.
Each Lender acknowledges that it has, independently and without
reliance upon the Agent or any other Lenders and based on such documents and
information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each Lender also acknowledges that it
will, independently and without reliance upon the Agent or any other Lenders and
based on such documents and information as it shall from time to time deem
appropriate, continue to make its own decisions in taking or not taking action
under or based upon this Agreement, any related agreement or any document
furnished hereunder or thereunder.
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ARTICLE VII
Miscellaneous
SECTION 7.01. Notices. Notices and other communications provided for
herein shall be in writing and shall be delivered by hand or overnight courier
service, mailed by certified or registered mail or sent by telecopy, as follows:
(a) if to the Borrower, to it at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇, Attention of ▇▇▇▇ ▇▇▇▇▇▇▇ (Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇), with a
copy to ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ at the above address (Telecopy No. (423)
274-8677);
(b) if to the Administrative Agent, to Credit Suisse First
Boston, Eleven ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention of ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ (Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇), with a copy to ▇▇▇▇▇▇ ▇▇▇▇▇▇ at
the above address (Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇); and
(c) if to a Lender, to it at its address (or telecopy number)
set forth below its signature herein or in the Assignment and
Acceptance pursuant to which such Lenders shall have become a party
hereto.
All notices and other communications given to any party hereto in accordance
with the provisions of this Agreement shall be deemed to have been given on the
date of receipt if delivered by hand or overnight courier service or sent by
telecopy or on the date five Business Days after dispatch by certified or
registered mail if mailed, in each case delivered, sent or mailed (properly
addressed) to such party as provided in this Section 7.01 or in accordance with
the latest unrevoked direction from such party given in accordance with this
Section 7.01.
SECTION 7.02. Survival of Agreement. All covenants, agreements,
representations and warranties made by the Borrower herein and in the
certificates or other instruments prepared or delivered in connection with or
pursuant to this Agreement shall be considered to have been relied upon by the
Lenders and shall survive the making by the Lenders of the Loans, regardless of
any investigation made by the Lenders or on their behalf, and shall continue in
full force and effect as long as the principal of or any accrued interest on any
Loan or any Fee or any other amount payable under this Agreement is outstanding
and unpaid. The provisions of Sections 2.12 and 7.05 shall remain operative and
in full force and effect regardless of the expiration of the term of this
Agreement, the consummation of the transactions contemplated hereby, the
repayment of any of the Loans, the invalidity or unenforceability of any term or
provision of this Agreement, or any investigation made by or on behalf of the
Administrative Agent or any Lender.
SECTION 7.03. Binding Effect. This Agreement shall become effective
when it shall have been executed by the Borrower, the Administrative Agent (in
its capacity thereas and as a Contingent Lender), and each Lender, and when the
Administrative Agent shall have received counterparts hereof which, when taken
together, bear the signatures of each of the other parties hereto, and
thereafter shall be binding upon and inure to the benefit of the parties hereto
and their respective permitted successors and assigns.
SECTION 7.04. Successors and Assigns. (a) Whenever in this Agreement
any of the parties hereto is referred to, such reference shall be deemed to
include the permitted successors and assigns of such party; and all covenants,
promises and agreements by or on behalf of the Borrower, the Administrative
Agent or the Lenders that are contained in this Agreement shall bind and inure
to the benefit of their respective successors and assigns.
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(b) Each Lender may assign to one or more assignees all or a portion of
its interests, rights and obligations under this Agreement (including all or a
portion of the Loans at the time owing to it); provided, however, that (i)
except in the case of an assignment to another Lender or an Affiliate or Related
Fund of the assigning Lender or another Lender, (x) the Borrower, unless an
Event of Default shall have occurred and be continuing, must give their prior
written consent to such assignment (which consent shall not be unreasonably
withheld) and (y) the amount of outstanding Loans of the assigning Lenders
subject to each such assignment (determined as of the date the Assignment and
Acceptance with respect to such assignment is delivered to the Administrative
Agent) shall not be less than $1,000,000 in the aggregate (or, if less, the
entire remaining amount of such Lender's outstanding Loans) and (ii) the
assignee, if it shall not be a Lender, shall deliver to the Administrative Agent
an Administrative Questionnaire and any tax form as required by the Internal
Revenue Service. Upon acceptance and recording pursuant to paragraph (e) of this
Section 7.04, and payment from and after the effective date specified in each
Assignment and Acceptance, which effective date shall be at least five Business
Days after the execution thereof, (A) the assignee thereunder shall be a party
hereto and, to the extent of the interest assigned by such Assignment and
Acceptance, have the rights and obligations of a Lender under this Agreement and
(B) the assigning Lender thereunder shall, to the extent of the interest
assigned by such Assignment and Acceptance, be released from its obligations
under this Agreement (and, in the case of an Assignment and Acceptance covering
all or the remaining portion of an assigning Lender's rights and obligations
under this Agreement, such Lender shall cease to be a party hereto but shall
continue to be entitled to the benefits of Sections 2.11, 2.12, 2.16 and 7.05,
as well as to any Fees accrued for its account and not yet paid).
(c) By executing and delivering an Assignment and Acceptance, the
assigning Lenders thereunder and the assignee thereunder shall be deemed to
confirm to and agree with each other and the other parties hereto as follows:
(i) such assigning Lenders warrants that it is the legal and beneficial owner of
the interest being assigned thereby free and clear of any adverse claim and that
the outstanding balances of its Loans, in each case without giving effect to
assignments thereof which have not become effective, are as set forth in such
Assignment and Acceptance, (ii) except as set forth in (i) above, such assigning
Lenders makes no representation or warranty and assumes no responsibility with
respect to any statements, warranties or representations made in or in
connection with this Agreement, or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of this Agreement or any other
instrument or document furnished pursuant hereto, or the financial condition of
the Borrower or any of the Subsidiaries or the performance or observance by the
Borrower or any of the Subsidiaries of any of its obligations under this
Agreement or any other instrument or document furnished pursuant hereto; (iii)
such assignee represents and warrants that it is legally authorized to enter
into such Assignment and Acceptance; (iv) such assignee confirms that it has
received a copy of this Agreement, together with copies of the most recent
financial statements referred to in Section 3.05(a) and such other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter into such Assignment and Acceptance; (v) such assignee will
independently and without reliance upon the Administrative Agent, such assigning
Lenders or any other Lenders and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under this Agreement; (vi) such assignee appoints
and authorizes the Administrative Agent to take such action as agent on its
behalf and to exercise such powers under this Agreement as are delegated to the
Administrative Agent, by the terms hereof, together with such powers as are
reasonably incidental thereto; and (vii) such assignee agrees that it will
perform in accordance with their terms all the obligations which by the terms of
this Agreement are required to be performed by it as a Lender.
(d) The Administrative Agent, acting for this purpose as an agent of
the Borrower, shall maintain at one of its offices in The City of New York a
copy of each Assignment and Acceptance delivered to it and a register for the
recordation of the names and addresses of the Lenders and principal amount of
the Loans owing to each Lender pursuant to the terms hereof from time to
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time (the "Register"). The entries in the Register shall be conclusive and the
Borrower, the Administrative Agent and the Lenders may treat each person whose
name is recorded in the Register pursuant to the terms hereof as a Lender
hereunder for all purposes of this Agreement, notwithstanding notice to the
contrary. The Register and any Assignments and Acceptances delivered to the
Administrative Agent pursuant to this Section 7.04(d) shall be available for
inspection by the Borrower and any Lender, at any reasonable time and from time
to time upon reasonable prior notice.
(e) Upon its receipt of a duly completed Assignment and Acceptance
executed by an assigning Lenders and an assignee, an Administrative
Questionnaire completed in respect of the assignee (unless the assignee shall
already be a Lender hereunder) and any tax form required by the Internal Revenue
Service, a processing and recordation fee of $3,500 and, if required, the
written consent of the Borrower and the Administrative Agent to such assignment,
the Administrative Agent shall (i) accept such Assignment and Acceptance, (ii)
record the information contained therein in the Register and (iii) give prompt
notice thereof to the Borrower and the Lenders. No assignment shall be effective
unless it has been recorded in the Register as provided in this paragraph (e).
(f) Each Lender may without the consent of the Borrower or the
Administrative Agent sell participations to one or more banks or other entities
in all or a portion of its rights and obligations under this Agreement
(including all or a portion of the Loans owing to it); provided, however, that
(i) such Lenders's obligations under this Agreement shall remain unchanged, (ii)
such Lenders shall remain solely responsible to the other parties hereto for the
performance of such obligations, (iii) the participating banks or other entities
shall be entitled to the benefit of the cost protection provisions contained in
Sections 2.11, 2.12 and 2.16 to the same extent as if they were Lenders and (iv)
the Borrower, the Administrative Agent and the Lenders shall continue to deal
solely and directly with such Lenders in connection with such Lenders's rights
and obligations under this Agreement, and such Lenders shall retain the sole
right to enforce the obligations of the Borrower relating to the Loans and to
approve any amendment, modification or waiver of any provision of this Agreement
(other than amendments, modifications or waivers decreasing any fees payable
hereunder or the amount of principal of or the rate at which interest is payable
on the Loans, extending any scheduled principal payment date or date fixed for
the payment of interest on the Loans, or releasing all or substantially all the
Guarantors).
(g) Any Lender or participant may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
7.04, disclose to the assignee or participant or proposed assignee or
participant any information relating to the Borrower furnished to such Lenders
by or on behalf of the Borrower; provided that, prior to any such disclosure of
information designated by the Borrower as confidential, each such assignee or
participant or proposed assignee or participant shall execute an agreement
whereby such assignee or participant shall agree (subject to customary
exceptions) to preserve the confidentiality of such confidential information on
terms no less restrictive than those applicable to the Lenders pursuant to
Section 7.16 and, in the case of any assignee, the Administrative Agent shall
provide the Borrower with an execution copy of such agreement.
(h) Any Lender may at any time pledge or assign a security interest in
all or any portion of its rights under this Agreement to secure obligations of
such Lender, including any pledge or assignment to secure obligations to a
Federal Reserve Bank, and this Section shall not apply to any such pledge or
assignment of a security interest; provided that no such pledge or assignment of
a security interest shall release a Lender from any of its obligations hereunder
or substitute any such pledgee or assignee for such Lender as a party hereto. In
order to facilitate such an assignment to a Federal Reserve Bank, the Borrower
shall, at the request of the assigning Lender, duly execute and deliver to the
assigning Lenders a promissory note or notes evidencing the Loans made to the
Borrower by the assigning Lenders hereunder.
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(i) The Borrower shall not assign or delegate any of its rights or
duties hereunder without the prior written consent of the Administrative Agent
and each Lender, and any attempted assignment without such consent shall be null
and void.
SECTION 7.05. Expenses; Indemnity. (a) The Borrower agrees to pay all
out-of-pocket expenses incurred by the Agent in connection with the syndication
of the credit facilities provided for herein and the preparation and
administration of this Agreement, the Exchange Notes or in connection with any
amendments, modifications or waivers of the provisions hereof or thereof
(whether or not the transactions hereby or thereby contemplated shall be
consummated) or incurred by the Agents or any Lender (other than the Initial
Lenders) in connection with the enforcement or protection of its rights in
connection with this Agreement or the Exchange Notes or in connection with the
Loans made or the Notes issued hereunder, including the fees, charges and
disbursements of Cravath, Swaine & ▇▇▇▇▇, counsel for the Agents and, in
connection with any such enforcement or protection, the fees, charges and
disbursements of any other counsel for the Agent or any Lender (other than the
Initial Lenders).
(b) The Borrower agrees to indemnify the Agent, each Lender, each
Affiliate of any of the foregoing persons and each of their respective
directors, trustees, officers, employees, agents and controlling persons (each
such person being called an "Indemnitee") against, and to hold each Indemnitee
harmless from, any and all losses, claims, damages, liabilities and related
expenses, including reasonable counsel fees, charges and disbursements, incurred
by or asserted against any Indemnitee arising out of, in any way connected with,
or as a result of (i) the execution or delivery of this Agreement or any
agreement or instrument contemplated thereby, the performance by the parties
thereto of their respective obligations thereunder or the consummation of the
Transactions and the other transactions contemplated thereby, (ii) the use of
the proceeds of the Loans, (iii) any claim, litigation, investigation or
proceeding relating to any of the foregoing, whether or not any Indemnitee is a
party thereto, or (iv) any actual or alleged presence or Release (as defined in
the Existing Credit Agreement) or threatened Release of Hazardous Materials (as
defined in the Existing Credit Agreement) on any property presently or formerly
owned, leased or operated by the Borrower or any of the Subsidiaries, or any
Environmental Claim (as defined in the Existing Credit Agreement) related in any
way to the Borrower or the Subsidiaries; provided that such indemnity shall not,
as to any Indemnitee, be available to the extent that such losses, claims,
damages, liabilities or related expenses are determined by a court of competent
jurisdiction by final and nonappealable judgment to have resulted from the gross
negligence or wilful misconduct of such Indemnitee.
(c) The provisions of this Section 7.05 shall remain operative and in
full force and effect regardless of the expiration of the term of this
Agreement, the consummation of the transactions contemplated hereby, the
repayment or exchange of any of the Loans, the invalidity or unenforceability of
any term or provision of this Agreement, or any investigation made by or on
behalf of an Agent or any Lender. All amounts due under this Section 7.05 shall
be payable on written demand therefor.
SECTION 7.06. Right of Setoff; Waiver by Borrower. If an Event of
Default shall have occurred and be continuing, each Lender is hereby authorized
at any time and from time to time, except to the extent prohibited by law, to
set off and apply any and all deposits (general or special, time or demand,
provisional or final) at any time held and other indebtedness at any time owing
by such Lender (or its Affiliates) to or for the credit or the account of the
Borrower against any of and all the obligations of the Borrower now or hereafter
existing under this Agreement, irrespective of whether or not such Lenders shall
have made any demand under this Agreement and although such obligations may be
unmatured. The rights of each Lender under this Section 7.06 are in addition to
other rights and remedies (including other rights of setoff) which such Lenders
may have.
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SECTION 7.07. Applicable Law. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
SECTION 7.08. Waivers; Amendment. (a) No failure or delay of the
Borrower, the Administrative Agent or any Lender in exercising any power or
right hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right or power, or any abandonment or
discontinuance of steps to enforce such a right or power, preclude any other or
further exercise thereof or the exercise of any other right or power. The rights
and remedies of the Borrower, the Administrative Agent and the Lenders hereunder
are cumulative and are not exclusive of any rights or remedies that they would
otherwise have. No waiver of any provision of this Agreement or consent to any
departure by the Borrower or any Guarantor therefrom shall in any event be
effective unless the same shall be permitted by paragraph (b) below, and then
such waiver or consent shall be effective only in the specific instance and for
the purpose for which given. No notice or demand on the Borrower in any case
shall entitle the Borrower to any other or further notice or demand in similar
or other circumstances.
(b) Neither this Agreement nor any terms hereof or thereof may be
amended, supplemented or modified except in accordance with the provisions of
this Section 7.08(b). The Required Lenders may, or, with the written consent of
the Required Lenders, the Administrative Agent may, from time to time, (a) enter
into written amendments, supplements or modifications hereto for the purpose of
adding any provisions to this Agreement or changing in any manner the rights of
the Lenders or of the Borrower hereunder or (b) waive, on such terms and
conditions as the Required Lenders or the Administrative Agent, as the case may
be, may specify in such instrument, any of the requirements of this Agreement or
any Default or Event of Default and its consequences; provided, however, that no
such waiver and no such amendment, supplement or modification shall directly (i)
forgive any portion of any Loan or extend the final scheduled maturity date of
any Loan or reduce the stated rate, or forgive any portion, or extend the date
for the payment, of any interest or fee payable hereunder (other than as a
result of waiving the applicability of any post-default increase in interest
rates), in each case without the written consent of each Lender directly and
adversely affected thereby, or (ii) amend, modify or waive any provision of this
Section 7.08(b) or consent to the assignment or transfer by the Borrower of its
rights and obligations hereunder (except as permitted pursuant to Section
7.03(i)), in each case without the written consent of each Lender directly and
adversely affected thereby, or (iii) amend, modify or waive any provision of
Article VI without the written consent of the Administrative Agent, or (iv)
release all or substantially all the Guarantors under the Guarantee, in each
case without the written consent of all Lenders, or (v) change the requirement
that the Loans be exchanged for Exchange Notes on the Bridge Termination Date or
amend the terms of the Exchange Notes in any manner that requires (or would, if
the Exchange Notes were outstanding, require) the approval of all holders of
Exchange Notes, in each case without the consent of each Lender directly
affected thereby. Any such waiver and any such amendment, supplement or
modification shall apply equally to each of the affected Lenders and shall be
binding upon the Borrower, such Lenders, the Administrative Agent and all future
holders of the affected Loans. In the case of any waiver, the Borrower, the
Lenders and the Administrative Agent shall be restored to their former positions
and rights hereunder, and any Default or Event of Default waived shall be deemed
to be cured and not continuing, it being understood that no such waiver shall
extend to any subsequent or other Default or Event of Default or impair any
right consequent thereon.
SECTION 7.09. Interest Rate Limitation. Notwithstanding anything
herein to the contrary, if at any time the interest rate applicable to any Loan,
together with all fees, charges and other amounts which are treated as interest
on such Loan under applicable law (collectively the "Charges"), shall exceed the
maximum lawful rate (the "Maximum Rate") which may be contracted for, charged,
taken, received or reserved by the Lenders holding such Loan or
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participation in accordance with applicable law, the rate of interest payable in
respect of such Loan or participation hereunder, together with all Charges
payable in respect thereof, shall be limited to the Maximum Rate and, to the
extent lawful, the interest and Charges that would have been payable in respect
of such Loan or participation but were not payable as a result of the operation
of this Section 7.09 shall be cumulated and the interest and Charges payable to
such Lenders in respect of other Loans or participations or periods shall be
increased (but not above the Maximum Rate therefor) until such cumulated amount,
together with interest thereon at the Federal Funds Effective Rate to the date
of repayment, shall have been received by such Lenders.
SECTION 7.10. Entire Agreement. This Agreement constitutes the entire
contract between the parties relative to the subject matter hereof. Any other
previous agreement among the parties with respect to the subject matter hereof
is superseded by this Agreement. Nothing in this Agreement, expressed or
implied, is intended to confer upon any party other than the parties hereto and
thereto any rights, remedies, obligations or liabilities under or by reason of
this Agreement.
SECTION 7.11. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES,
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A
TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT
OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT. EACH PARTY HERETO (A) CERTIFIES
THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT
AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY,
AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 7.11.
SECTION 7.12. Severability. In the event any one or more of the
provisions contained in this Agreement should be held invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein and therein shall not in any way be
affected or impaired thereby (it being understood that the invalidity of a
particular provision in a particular jurisdiction shall not in and of itself
affect the validity of such provision in any other jurisdiction). The parties
shall endeavor in good-faith negotiations to replace the invalid, illegal or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the invalid, illegal or unenforceable
provisions.
SECTION 7.13. Counterparts. This Agreement may be executed in
counterparts (and by different parties hereto on different counterparts), each
of which shall constitute an original but all of which when taken together shall
constitute a single contract, and shall become effective as provided in Section
7.03. Delivery of an executed signature page to this Agreement by facsimile
transmission shall be as effective as delivery of a manually signed counterpart
of this Agreement.
SECTION 7.14. Headings. Article and Section headings and the Table of
Contents used herein are for convenience of reference only, are not part of this
Agreement and are not to affect the construction of, or to be taken into
consideration in interpreting, this Agreement.
SECTION 7.15. Jurisdiction; Consent to Service of Process. (a) The
Borrower hereby irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of any New York State court or
Federal court of the United States of America sitting in New York City, and any
appellate court from any thereof, in any action or proceeding arising out of or
relating to this Agreement, or for recognition or enforcement of any judgment,
and each of the parties hereto hereby irrevocably and unconditionally agrees
that all claims in respect of any such action or proceeding may be heard and
determined in such New York State or, to the extent
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permitted by law, in such Federal court. Each of the parties hereto agrees that
a final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this Agreement shall affect any right that the
Administrative Agent or any Lender may otherwise have to bring any action or
proceeding relating to this Agreement against the Borrower or its properties in
the courts of any jurisdiction.
(b) The Borrower hereby irrevocably and unconditionally waives, to the
fullest extent it may legally and effectively do so, any objection which it may
now or hereafter have to the laying of venue of any suit, action or proceeding
arising out of or relating to this Agreement in any New York State or Federal
court. Each of the parties hereto hereby irrevocably waives, to the fullest
extent permitted by law, the defense of an inconvenient forum to the maintenance
of such action or proceeding in any such court.
(c) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 7.01. Nothing in this
Agreement will affect the right of any party to this Agreement to serve process
in any other manner permitted by law.
SECTION 7.16. Confidentiality. The Administrative Agent and each of
the Lenders agrees to keep confidential (and to use its best efforts to cause
its respective agents and representatives to keep confidential) the Information
(as defined below) and all copies thereof, extracts therefrom and analyses or
other materials based thereon, except that the Administrative Agent or any
Lender shall be permitted to disclose Information (a) to such of its respective
officers, directors, employees, agents, affiliates and representatives as need
to know such Information, (b) to any direct or indirect counterparty in swap
agreements or such contractual counterparty's professional advisors (so long as
such contractual counterparty or professional advisors to such contractual
counterparty agree to be bound by the provisions of this Section 7.16), (c) to
the extent requested by any regulatory authority, including the National
Association of Insurance Commissioners or any successor entity thereto, (d) to
the extent otherwise required by applicable laws and regulations or by any
subpoena or similar legal process, (e) in connection with any suit, action or
proceeding (i) relating to the enforcement of its rights hereunder or (ii) for
purposes of establishing a "due diligence" defense or (f) to the extent such
Information (i) becomes publicly available other than as a result of a breach of
this Section 7.16 or (ii) becomes available to the Administrative Agent or any
Lender on a nonconfidential basis from a source other than the Borrower;
provided, however, that the Administrative Agent or any Lender, as the case may
be, shall provide the Borrower, to the extent practicable, with advance notice
of any disclosure of information referred to in clauses (c), (d) and (e) above.
For the purposes of this Section, "Information" shall mean all financial
statements, certificates, reports, agreements and information (including all
analyses, compilations and studies prepared by the Administrative Agent or any
Lender based on any of the foregoing) that are received from the Borrower and
related to the Borrower, any shareholder of the Borrower or any employee,
customer or supplier of the Borrower, other than any of the foregoing that were
available to the Administrative Agent or any Lender on a nonconfidential basis
prior to its disclosure thereto by the Borrower, and that are in the case of
Information provided after the date hereof, clearly identified at the time of
delivery as confidential. The provisions of this Section 7.16 shall remain
operative and in full force and effect regardless of the expiration and term of
this Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
KING PHARMACEUTICALS, INC.,
by /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chief Financial Officer
Address: King Pharmaceuticals, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
CREDIT SUISSE FIRST BOSTON, individually
and as Administrative Agent,
by /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director
Address: Credit Suisse First ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
by /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Asst. Vice President
Address: Credit Suisse First ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
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SUBSIDIARY GUARANTORS:
KING PHARMACEUTICALS OF NEVADA, INC.,
by
-----------------------------------------
Name:
Title:
Address:
Telecopy:
MONARCH PHARMACEUTICALS, INC.,
by
----------------------------------------
Name:
Title:
Address:
Telecopy:
PARKEDALE PHARMACEUTICALS, INC.,
by
----------------------------------------
Name:
Title:
Address:
Telecopy:
MEDCO RESEARCH, INC..,
by
-----------------------------------------
Name:
Title:
Address:
Telecopy:
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